Let me first say that I love football and I went to Stanford. But not when Stanford had good football teams, no, no. I went to Stanford when we were lucky to win 4 games in the season. So the recent, phenomenal success of Cardinal football is something I treasure deeply and hold onto with everything I have. I tell you this so as to acknowledge any bias that may creep into the following.
SOMEONE IS SUING ANDREW LUCK!!!! (Yes, that is shouting and multiple exclamation points. I’m not ashamed.) Just ahead of his being the number one (#1) pick in the 2012 NFL Draft, Leaf Trading Cards, LLC has sued Andrew Luck in Dallas County, Texas, seeking a declaratory judgment that they can continue to produce collectible trading cards featuring Luck and that such cards do not infringe Luck’s rights of publicity.
According to its Complaint, Leaf Trading Cards is licensed to produce trading cards of participants in the U.S. Army All-American Bowl, a high school all-star game. Trading cards have been produced for the games since 2009, but Leaf claims to have the right to use the name, likeness, image and intellectual property of players from prior bowl games as well. Andrew Luck played in the U.S. Army All-American Bowl in 2008.
Leaf Trading Cards has produced and distributed several 2012 trading card sets featuring players who are entered in the 2012 NFL Draft. Included in these sets are bonus cards featuring Andrew Luck’s image from the 2008 U.S. Army All-American Bowl. Well, on April 13, Andrew Luck’s attorneys sent a cease and desist letter to Leaf Trading Cards demanding that Leaf Trading Cards (I can’t just call them Leaf. Reminds me of Ryan Leaf. /shudder) stop violating Andrew Luck’s rights of publicity. However, Andrew Luck’s attorneys also requested that Leaf Trading Cards provide proof of any authorization or license, if Leaf Trading Cards believed it was licensed to exploit Andrew Luck’s rights of publicity.
Curiously, Leaf Trading Cards filed a lawsuit instead. In that lawsuit, they claim that their use is 1) protected by the First Amendment to the U.S. Constitution, 2) protected by Article 1, Section 8 of the Texas Constitution and 3) is licensed.
Leaving aside personal jurisdiction issues, the merits of this case could be interesting. Rights of publicity are common law rights which are not necessarily recognized in every state, although some states have codified them in statutes. Texas does, for now, recognize a common law right of publicity, or rather, the right to be free from unwarranted appropriation or exploitation of one’s personality. The contours of that right are fairly nebulous since the Texas Supreme Court has not yet ruled on the right; the seminal Texas case is an appellate court decision. The interplay of the First Amendment and rights of publicity can get interesting. On the one hand, people have a right to control the commercial exploitation of their likeness. On the other hand, the government can’t infringe on free speech, i.e. a person’s right to creative expression, except in limited circumstances. Therefore, the First Amendment can act as a defense to a right of publicity claim, sometimes. But the analysis is multilayered and convoluted and I’m not even going to try to work through it here. And, since I don’t practice in Texas, I shall also refrain from opining on the defense under the Texas Constitution (although, I’m not sure how a trading card can be considered an “opinion.” Just throwing that out there.)
But that final defense - that Leaf Trading Cards is licensed to use that specific Andrew Luck image - seems to be the easiest defense to tackle AND THE ONE THAT DOESN’T REQUIRE A LAWSUIT! (Sorry. I could only restrain myself so long.) Andrew Luck’s attorneys specifically requested that Leaf Trading Cards provide any evidence that they were authorized to use Andrew Luck’s name, image and likeness. If, as Leaf Trading Cards alleges, they are authorized to use Andrew Luck’s image from the 2008 U.S. Army All-American Bowl, that’s the end of the story.
But there’s some language in the Complaint that raises some red flags on this defense. Leaf Trading Cards states that the producer of the U.S. Army All-American Bowl represented and warranted that it had the authority to grant a license to Leaf Trading Cards to use the name, likeness and image of players in the Bowl. Leaf Trading Cards also stated that the producer represented and warranted that it had obtained, or will obtain, written permission from the players to use the rights that were licensed to Leaf Trading Cards. So, it’s entirely possible that Leaf Trading Cards does not have any rights to use Andrew Luck’s name, image or likeness. Hence, the constitutional defenses. But, if they don’t actually have the rights, why allege that they do?
I’ll be interested to see how this all turns out, but for now, I’m going to take solace from the fact that a Stanford quarterback is so popular that he’s gotten sued even before he’s made it to the big time. It almost makes up for that 3-8 season when I was there. Almost.